The Concept Of Marital Rape Vis-À-Vis Age And Mens Rea In India
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
THE CONCEPT OF MARITAL RAPE VIS-À-VIS AGE AND
MENS REA IN INDIA
Arushi Sharma, Assistant Professor, Oriental University, Indore Varalika S. Parashar, Assistant Professor, Oriental University, Indore Ms. Sunanda Upadhyay, Assistant Professor, Oriental University, Indore
ABSTRACT
The legal exception for marital rape has long been a contentious issue globally, with several countries criminalizing the act to uphold human dignity and equality. Canada, South Africa, and Australia have abolished the common law "marriage rape immunity," recognizing that such protection for husbands is incompatible with modern legal principles. The European Commission of Human Rights and the Justice Verma Committee in India have emphasized the need for legislative intervention to address marital rape, highlighting its violation of fundamental human rights. In India, however, marital rape remains legally protected under the Bharatiya Nyaya Sanhita (BNS) and its predecessor, the Indian Penal Code (IPC), despite its contravention of constitutional rights.
Exception 2 of Section 63 of the BNS, under scrutiny in the ongoing Supreme Court hearings, raises concerns about its violation of Articles 14, 15, 19, and 21 of the Indian Constitution. These articles collectively ensure equality, prohibit discrimination, guarantee freedom of speech, and protect life and personal liberty. The immunity granted to husbands perpetuates gender inequality, undermines female sexual autonomy, and denies women the right to seek justice for sexual violence within marriage. This archaic exception reflects entrenched patriarchal norms that dehumanize women and disregard their bodily autonomy. The ongoing case of RIT Foundation v. Union of India and similar petitions underscore the urgent need for reform to align Indian law with international human rights standards.
A favorable verdict would signify a monumental shift toward gender equality, affirming a woman’s right to consent and bodily integrity in marriage while dismantling historical prejudices in law. Keywords: Marital Rape, Indian Constitution, Gender Equality, Bodily Autonomy, Patriarchy, Justice Verma Committee, Bharatiya Nyaya Sanhita, Fundamental Rights
1. INTRODUCTION
Rape is more than just an act of sexual assault; it is a social degeneration with the goal of destroying a woman's modesty as well as the physical, mental, and emotional worth she possesses. Instilling the view that the society at large remains an association or culmination of the wrong deeds, not only departing from the core theory of symbiosis but also by the belief of making everyone sustainable, the concept has been able to maintain itself and create a void. Whether or not marital rape should be included in the scope of the Indian Penal Code, 1860 as a crime has been a source of contention and controversy since antiquity. Isn't it ironic that in India, a country revered by its people as their "motherland," mothers face danger when it comes to equality?
When it comes to defining two terms at the same time, marriage is defined as the legal union of two people as spouses, while on the other hand, rape is defined as a sexual assault, usually involving sexual intercourse or other forms of penetration, that has taken place against a person's will - in the patriarchal society of India, the concept of marital rape is never a consideration. If we think of rape as a "genus", then marital rape is its “sub-genus”. The rape committed by the person to whom the victim is married is marital rape," according to the Oxford English Dictionary. An act of rape done against one's spouse by a spouse or an exspouse is known as marital rape. It can be committed without the consent of the spouse or exspouse, spouse's or it can be carried out against the will of the spouse or ex-spouse spouse's without their consent.
But the sad truth is that in India and in many other countries throughout the world, the concept of "permission" is still unrecognized as a crime against women and children. Throughout history, the practice of husbands forcing their wives to have sexual relations against their will has been universally tolerated by the majority of societies. The crime of rape was defined in most countries as having sexual relations with a woman who was not his wife without her express consent. A license to rape was effectively granted to the husbands who had carried out the crimes against their wives. According to the Victorian morality, a woman is her father's and husband's property. Hence, the exemption nearly all of the countries and ex-colonies that took morality from the British have already returned it.
The idea that a couple has a constitutional right to have sex outside of marriage has dwindled in popularity as the field of human rights has grown. Since the 1960s, feminists have pushed tirelessly to repeal the marital rape exemption and punish marital rape in the United States. To combat sexual crimes against freedom, self-determination, or physical integrity, countries around the world are criminalising spousal rape in addition to other forms of sexual assault. The Declaration on the Elimination of Violence Against Women was issued by the United Nations High
Commissioner for Human Rights in December 1993, establishes rape as a violation of human rights in the context of marriage. Although it is illegal in India to rape a married woman, it is common practise. However, the court in India appears to be working in opposition to the legislative, whereas in other nations either the legislature has criminalised marital rape or the judiciary has actively recognised it as an offence. When it came to the most prized of all constitutional rights, the right to life, the Supreme Court ruled in Bodhisattwa Gautam v. Subha Chakraborty, that rape is "a crime against core human rights" and "a violation of the victim's" most deeply held convictions. However, by failing to recognise marital rape, it contradicts this same proclamation. 1 The Women's Sexual, Reproductive and Menstrual Rights Bill 2018 was introduced in the parliament by Dr.
Shashi Tharoor, and the discussion on marital rape most often follows after the Supreme Court's decision in the case of Independent Thought vs. Union of India(2018), where the Honorable Court refrained from considering the larger aspects of marital rape exception clause under the Penal Code. When the law reaches out to every single human being in the country, then it is considered to be in an ideal state. To represent a holistic legal analysis of marital rape in India and the contemporary world, this paper is focused on human beings. It's about all of the socio-legal issues surrounding marital rape, and whether criminalization of marital rape should be accepted or added as grounds for divorce and child support from one's husband. Parliament and the courts have overlooked chances to deal with a critical matter. 2Click or tap here to enter text.
Various High Courts have handed down inconsistent judgements recently. For example, one ruled that marital rape is a sufficient reason for divorce, while another granted anticipatory bail to a man who was alleged to have raped a woman. Therefore, both husband and wife can be victim of marital rape but no proper legislation criminalizing it as Rape is there and most of the time due to moral force, family force, sacrament of marriage, divorce threat, future of children, lack of family support etc. are some of the factors which is responsible for committing this offence. 3 No longer relevant is the question to be answered now: is it acceptable for a wife to protect her body if someone violates it against her wishes? 1 She's just as deserving of legal protection as any single woman, right? Does he have the right to violate her privacy whenever he likes?
This belief that the 'exception' will be forced to yield in this debate. To begin with, “Husband is not 1 Kilpatrick, D. G. , & Resnick, H. S. (1993). Posttraumatic Stress Disorder associated with exposure to criminal victimization in clinical and community populations. Retrieved September 19,2021, 4:34 ET, from https://link. springer. com/article/10. 1023/A:1024437215004.
2 id.
3 id.
the master of wife is time to express it. ”4 According to the Supreme Court's Navtej Johar and Joseph Shine rulings on Constitutional interpretation, Articles 14 and 21 of the Constitution must be interpreted in accordance with constitutional morality. 5 Currently, in September 2024, the Supreme Court has begun hearing a batch of petitions seeking the criminalisation of marital rape. The petitioners are challenging an exception under the Bharatiya Nyaya Sanhita (BNS), which protects husbands from being charged with rape, and emphasises that a wife has the right to say no. The petitions, which challenge Exception 2 of Section 63 of the BNS (previously under Section 375 of the IPC), argue that the plea to criminalise marital rape in India represents "people versus patriarchy.
" In conclusion, the outcome of these hearings holds significant potential to reshape the legal recognition of marital rights and individual autonomy in India. A verdict favoring criminalisation would mark a pivotal shift towards gender equality, challenging entrenched societal norms and affirming a woman’s right to bodily autonomy within marriage.
2.OBJECT OF THE STATUE –RAPE LAWS
2.1. The purpose of rape laws is to safeguard women's physical protection as well as their
sexual liberty; they are in place to acknowledge the singularity of this crime and the frequency with which it occurs. According to the Indian Penal Code, the offence of sexual intercourse with a woman "without her consent" is defined as "rape" in Section 375. Indian courts have frequently utilised a criterion of consent subjective to the accused to evaluate the existence or absence of consent because criminal law tries to penalise a criminal's 'guilty thinking' According to the Delhi High Court's decision in Mahmoud Faroz v. State of NCT of Delhi(2015)6, an inequitable result and an unfairness to the victim can be attributed to a victim's vocally expressed feeble "no," which can in some situations be interpreted as her assent. A close relationship between the accused and victim was violated by the accused in this case.
In fear of physical assault, the victim feigned an orgasm rather than resisting the accused. Affirming that "even a feeble no may indicate yes" in some cases, the court noted that the parties were "known to one other and if there have been bodily interactions in the past", the court assumed her consent. For whatever reason, the court assumed the victim's 4 Finkelhor, D. , & Yllo, K. (1985). License to rape: Sexual abuse of wives. New York: Holt, Rinehart, & Winston. Retrieved September 18,2021, 2:44 ET, from https://journals. sagepub. com/doi/10. 1177/088626001016010002. 5 The High Court of Delhi is hearing a clutch of petitions filed by All India Democratic Women’s Association, RTI Foundation and some other individuals who want deletion of exception 2 to s. 375, IPC.
6 (2013) 7 SCC 125.
agreement based on her flirtatious behavior in the past, her lack of physical resistance, and her faint refusal. 7It was considered that the Delhi High Court utilized a subjective criteria for assessing consent. High court's discussion of the 'playful banter, flirtation, and acquaintance' of the victim was an attempt to determine her meaning and how that intent was interpreted by the accused. There is no crime committed, even if the victim's actions lead the accused to believe that she had given her permission for sexual intercourse. Is it obligatory by law to meet such a standard? Section 375 of the Indian Penal Code defines consent as "an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, signals intent to participate in the specified sexual act".
The provision reads as if Indian law contemplates an expressive requirement for sexual consent but does not require that the question of consent be subjectively determined in the accused's mind. Explanation 2 focuses on the victim's expression of consent rather than the accused's perception. Thus, it is reasonable to assume that the law's norm is more objective. 8
2.2. In order to ascertain sexual consent objectively, the victim's acts or words must be
evaluated in light of their objective consequences. Because of the 'equivocality,' the victim's acts or statements should be interpreted as either consent or rejection within the terms of Section 375 explanation 2. There should be no doubt that a victim's unequivocal "no" or other verbal response clearly demonstrates her lack of consent. If there is any doubt as to whether the victim has given her "unequivocal" consent, her conduct should be taken into consideration. Because there is no standard of equivocity for past relationships with a victim, there can be no proof of consent based on past friendships or flirtations.9
2.3. Having a high degree of impartiality read into Indian Penal Code section 375 is
necessary for practical reasons, as it is sometimes difficult for a victim to convey the lack of agreement. Victims may be compelled to comply with an accused's sexual advances out of fear of physical harm, but this does not establish consent. Mahmood Farooqui's rulings undermine the core objective of the 2013 Criminal Law (Amendment) Act, which was 71,2 8 When no is not an option: Marital rape denies right over her body. Hindustan Times. (2015, May 24). Retrieved March 15, 2022, from http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape-denies-rightover-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.html. 9 Anuja. S. Rights of Women against Domestic Violence-The Law and Emerging Challenges. (2012). Retrieved September 18, 2021, 19:05 ET, from https://shodhganga.inflibnet.ac.in/bitstream/10603/21123/10/10_chapter%203.pdf.
passed in the wake of the Delhi gang rape atrocity. An objective criteria was established for judging consent in cases of rape, which de-recognized the victim's sexual history and presumptively assumed the absence of consent. Such irrational rulings demonstrate the necessity of a significant shift in the way Indian rape laws are interpreted.10
2.4. Marital rape of women above the age of 18 is not a crime, and in fact, it has been
argued numerous times that exemption 2 of Section 375 of the IPC (decriminalizing marital rape) should be eliminated. Also, the Indian government has attempted to exempt marital rape from becoming criminal. in August 2017, as a result of many petitions asking for exception 2 to Section 375 of the IPC to be stricken, the central government claimed in an affidavit that "to prevent marital rape from becoming an established practice, it must be assured that this exception does not exist."11
2.5. Further, despite the fact that Indian law has progressed in every possible area, marital
rape is still not regarded an offence. It is shameful that such a horrific and crippling act is not an offence in India, despite modifications, law commission research and new legislation. Women's desire to safeguard their marriages despite the absence of any personal privacy protection shows that legislation has been either non-existent or obscure, and everything has simply depended on the will and sexual demands of men in a marital relationship is the point that is being highlighted here. Courts play a crucial role in deciding such instances because there is no clear statute for such an offence. Section 375 of the Indian Penal Code (IPC) criminalises rape, but marital rape is still not recognised as a crime and is an exception to the section, which specifies that sexual intercourse by a man with his own wife is not rape, provided that the wife should not be under the age of fifteen.
No matter what kind of relationship you have with the person who rapes you, that relationship is not relevant to the definition of the crime. The rape of a wife by her husband without her consent is the subject of this article, hence it is relevant. According to Section 375 of the Indian Penal Code (IPC), marital rape is allowed. 12
10 India law journal. (2020). India
LawJournal. https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html. 11 Criminalizing marital rape will destabilize the institution of Marriage: Government tells Delhi HC, Outlook India, (August 29, 2017) https://www.outlookindia.com/website/story/criminalising-marital-rape-willdestabilise-institution-ofmarriage-government-t/300948.
12 Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019),
https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/.
2.6. Divorce is an option for a victim of spousal rape. There is no substitute for criminal
offences when it comes to civil remedies such as divorce or the PWDV Act. Sections 498A (cruelty by husband or family) and 377 (unnatural carnal intercourse) of the IPC are also argued to provide remedies for the victim. Because of this, the exemption from rape prosecution is only partially justified. In the belief that other laws provide "adequate remedy" for rape, the real violation of rape is trivialised. As well as safeguarding women's physical protection, rape laws exist to reflect the singularity of this crime and the prevalence with which it is committed.13.
2.7. CEDAW (Convention on Elimination of All forms of Discrimination against
Women) 1979, The Declaration on Elimination of Violence against Women (DEVAW) 1993, ICCPR and ICESR 1966 are some of the human rights which occupy a significant place in the certain International Conventions. Article 1(3) of the UN Charter specifies that one of the goals of the UN is to protect human rights. Also, "the basic human rights of women, namely the right to dignity, freedom from discrimination, and acknowledgment of violence as a form of discrimination, are necessary to protect and preserve their human rights. ". 14Violence against women on the grounds of their marital status is likewise banned by many international accords. Parties to treaties, such as India, have a duty to incorporate provisions from the conventions into their domestic legislation.
Article 1 of CEDAW15(Convention on the Elimination of All Forms of Discrimination Against Women) details discrimination against women, while Article 2(a) of DEVAW16 (Declaration on the Elimination of Violence Against Women) views marital rape as a criminal offence. Indian participation in the conventions necessitates compliance with these principles and the introduction of a domestic law that addresses marital rape.
3. ANALYSIS OF THE MAIN PROVISIONS17
13 Marital rape brought under law will put family system under stress’, Hindustan Times, (February 03, 2017,
10.52 pm IST).
14 Anuja. S. Rights of Women against Domestic Violence-The Law and Emerging Challenges. (2012). Retrieved September 18, 2021, 19:05 ET, from https://shodhganga.inflibnet.ac.in/bitstream/10603/21123/10/10_chapter%203.pdf. 15Article 1 of CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status”.
16 Article 2 (a) of the DEVAW categorically encompasses marital rape as violence against women.
17 Tripathi, Karan(2021). Delhi HC Dismisses Plea For Making ‘Marital Rape’ A Ground For Divorce. LIVE LAW. Retrieved September 19,2021, 4:34 ET from https://www.livelaw.in/news-updates/recognition-of-maritalrape-as-an-offence-146200.
3. 1. Non-consensual sexual contact between husband and wife, if she is over the age of 18, is not considered rape under new criminal laws {Section 63 BNS}. Thus, it allows a 'husband' to exercise his marital right of (non-consensual or unwanted) intercourse with his 'wife' (above the age of fifteen) without fear of prosecution, thus avoiding the definition of 'rape'. On the basis of this assumption, the husband's immunity for marital rape is thought to be founded. In the event that her husband wants to have sex with her, regardless of whether she is willing or not, she is obligated to comply with his wishes and desires. That's why it's important for the preservation of family values to rule out the possibility of fabricated and motivated accusations of sex abuse, as well as practical difficulties that might arise in a legal proceeding.
It is not acceptable to engage in sexual activity with someone whose marriage to him was invalid because he was already married and had a living spouse and knew about it. It is also an offence to engage in non-consensual sexual activity with a spouse who is separated or living apart. However, the punishment for a man's nonconsensual sexual relations with his wife when she is under the age of fifteen, which amounts to rape and is very mild when compared to the punishment for his own wife's nonconsensual sexual relations. Except in cases where the facts constituting the offence have been established prima facie by a complaint made by the wife against her husband, no court has the authority to investigate allegations of sexual intercourse between a husband and his wife while they are still married.
3.2. In India, when a woman is being victimized physically and mentally, all she can do is turn
to section 498A of the Indian Penal Code, 1860, which includes imprisonment that may last up to three years along with a fine. Even though marital rape is not directly addressed in this section, punishment is provided for those accused of this crime under the label of "cruelty". 3.3.Section 3(d)(2) of the Domestic Violence Act, 2005, specifies sexual assault as an offence that accepts any form of violence, including rape. creative Cruelty is not grounds for divorce, only reparation, or money. While rape is a criminal offence, it's true to say that seeking civil remedies is tantamount to being just. 3.4.Also, even under Hindu personal law, marital rape is not a reason for divorce. Under Hindu personal law, bestiality, sodomy, and cruelty are considered legal grounds for divorce. Rights should not be sacrificed to grant women greater sexual autonomy. Recipients of
conjugal rights can assume that financial compensation will have no meaning in the eyes of the law. These statements are not accurate; these two concepts are not overlapping or contradicting. Marriage does not involve the complete loss of personal privacy; it just takes on the nature of its existence or nonexistence, much like contract law. According to this viewpoint, it is a sacrament and a decree of restitution of conjugal rights is not one that authorizes marital rape, but a tool and a manner to safeguard the institution of marriage. It is the state's desire to save the institution of marriage, rather than for procreation, that motivates the issuance of the proclamation of sexual relations. One must not give the body and sexual privacy without permission of the state.
Since the other married women have to go to section 498A, which punishes marital rape as “cruelty to one's spouse,” they all have to resort to it. 3. 5. It is not rape for a husband to engage in sexual intercourse with his wife if the woman is married and not under the age of fifteen. Prior to the 2013 IPC amendment, when the wife was between the ages of 12 and 15, a severely reduced sentence was provided, which might have stretched to two years or a fine. Only when she was under the age of 12 was it considered rape. As a result of an amendment made in 2013, this clause has been eliminated, although the idea of marital rape remains unrecognised. The Justice Verma Committee Report, recommends that the IPC's marital rape exemption should be revoked.
To put it another way, Indian law places greater importance on the rights of a husband than a wife, even if she is much below her legal marriage age. Not treating coercive sexual intercourse with a minor wife (between the ages of 15 and 18) as an act of rape would be the legal corollary of this. The only cases of marital rape that fall under the purview of the law are those involving lawfully separated couples who are not living together as defined under section 376-B of the IPC. 18 3. 6. Marital rape of women above the age of 18 is not a crime, and in fact, it has been argued numerous times that should be eliminated. Also, the Indian government has attempted to exempt marital rape from becoming criminal.
in August 2017, as a result of many petitions asking for exception 2 to Section 375 of the IPC to be stricken, the central government claimed in an affidavit that "to prevent marital rape from becoming an established practice,
18 Justice Verma Committee Report on Anti-Rape Law. (2013). Retrieved September 22, 2021, from
www.manupatra.com.
it must be assured that this exception does not exist. "19 3. 7. In the eyes of the law, intent to engage in sexual behaviour with a woman without her consent constitutes rape's mens rea. Sexual intercourse is, by definition, a deliberate act. An intention to participate in sexual behaviour cannot be denied once intercourse has been demonstrated. The defendant's state of mind, on the other hand, is clouded by the inability of the women to consent. He may have intercoursed without the woman's knowledge or agreement in the event that a men believes she has given his permission. Because of this, he is entitled to rely on the defence of honest belief that the woman gave her agreement to the sexual encounter in question. Because he did not act with mens rea, a legal condition for committing rape, he would not be held responsible.
Because of the previously mentioned assumption regarding his mental condition, the onus is on the defendant to show that he had an honest and reasonable belief in her consent. Coercive physical force is legalised as marital rape in India, where a spouse's private space can be entered. Marital rape is a violation of the institution of marriage, which is founded on trust and intimacy, and the non-criminalization of marital rape hurts that institution. Because of the second exception to Section 375, a socially accepted practise that impairs the mental and physical well-being of Indian spouses is now allowed. As a result, the same mens rea rules should be used to marital and non-marital rape. Women's safety and well-being can only be improved by criminalising marital rape.
That's why naming and documenting violence against women, as well as dismantling the boundaries between the public and private spheres, are essential if we are to effect true change. As a result, either the husband or the woman can commit a rape in the marriage, and no laws are in place to make this crime illegal. When it comes to rape's mens rea, there is a degree of ambiguity. According to any widely accepted definition of the offence, there is no need to show that the defendant had a subjective mentality. However, even if rape is punishable by life in prison, a severe punishment, it does not constitute an absolute offence. 20 3. 8. According to the government, criminalizing marital rape could result in many innocent persons being wrongly accused of rape, as well as numerous fake rape cases.
The only thing 19 Criminalizing marital rape will destabilize the institution of Marriage: Government tells Delhi HC, Outlook India, (August 29, 2017) https://www. outlookindia. com/website/story/criminalising-marital-rape-willdestabilise-institution-ofmarriage-government-t/300948.
20 Marital rape: Demystifying “Consent” within Marriage. (2022, February 12). Times of India Blog.
https://timesofindia.indiatimes.com/blogs/legally-speaking/marital-rape-demystifying-consent-within-marriage/.
that stands in the way of making marital rape illegal is the fact that our government prefers to not criminalise it rather than spend the time and resources necessary to properly investigate the problem. Answering a question on marital rape, the Member of Parliament (MP) and current Minister for child and women development (WCD) from India, Maneka Gandhi declared that ‘Marital rape is not part of Indian culture. ’21 Thus, Krishna Raj, who is the Union Minister of State of Agriculture & Farmers Welfare, argued that criminalizing marital rape would have disastrous consequences for the Indian family system, as removal of Exception 2 of section 375 of the Indian Penal Code would lead to the collapse of the whole family system. 22 3. 9.
Some legislators, such as Shashi Tharoor, advocate a different stance on women's sexual rights and have submitted a private bill in the Lok Sabha with this as its goal. It additionally suggests the removal of exemption 2 of the Indian Penal Code, which provides that a man cannot be prosecuted for sexual intercourse with his own wife if she is over the age of 18. If she is a woman, her ethnicity, religion, caste, education, profession, wardrobe, entertainment, social circle, personal opinions, sexual conduct in the past, or any other such reasons would not be used to imply consent. 23
4. STATUS OF THE LEGISLATION IMPLEMENTATION: JUDICIAL RESPONSE24
4.1.One of the recommendations sought through a writ petition in Sakshi v. Union of India25 was the repeal of the marital exclusion provision, thus making marital rape a criminal offence. A gender-neutral approach to rape was also advocated in the 172nd Report. Nonetheless, India has not embraced it. Although the report's recommendations did not include abolition of the exception for marital rape, they are valid recommendations. Interim compensation was awarded in this case where a man was having sexual intercourse with another woman in an illicit marriage and tried to take advantage of the fact that he was no longer in danger of prosecution because of the statute of limitations. In this case, it was
21 Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019),
https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/.
22 Marital rape brought under law will put family system under stress’, Hindustan Times, (February
03, 2017, 10.52 pm IST).
23 Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019),
https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/. 24 Time to review IPC section that says marital rape is not crime: Gujarat high court. (2021, December 16). Hindustan Times. https://www.hindustantimes.com/india-news/time-to-review-ipc-section-that-says-maritalrape-is-not-crime-gujarat-high-court-101639593822780.html.
25 AIR 2004 SC 3566, 2004 (2) ALD Cri 504.
determined that rape is a violation of Article 21, the right to human dignity of the victim. Marital rape was criminalised in India in this landmark verdict, although this was balanced by the Court ruling that marital rape is not a crime in India. Under the Indian Penal Code, Section 377 says that a wife may initiate procedures against her husband for unnatural sex. However, she is only permitted to file charges for sodomy, buggery, and bestiality. The guys may be deterred from undertaking such acts by their knowledge of the recognition and the penalties that are applied in equal measure. 4. 2. It was a watershed decision when the Kerala High Court26 declared that marital rape could be used as a reason for divorce. Thus, although the law does not recognise marital rape as a crime, the court acknowledges this as an act of cruelty and grants a divorce for this reason.
When this ruling reignites the debate regarding the necessity of maintaining 'Marital Rape' exception in the Indian Penal Code, it in a way rekindles the debate over that issue. 4. 3. Even after several amendments, the exception under the Indian Penal Code remains unaltered. This exception was overturned by the Supreme Court in the case of Independent Thought vs. Union of India27. The Law Commission of India rejected the proposal to delete the Exception, arguing that it intrudes on the marital relationship. But raising the age of the "wife" from fifteen to sixteen was proposed as a recommendation. In Sakshi's opinion, when a man who has harmed his own wife (either physically or mentally) is found guilty, there is no reason why rape or sexual assault should be any different. The intervenor in this case cited the judgement of Justice K. S. Puttaswamy (Retd. ) & Anr. v.
Union of India(2017) , in which he and other similar individuals filed an intervention. “I have deliberately avoided this topic since it could damage any case related to the argument that marital rape is a different offence for women over the age of 18. As far as the issue is concerned, it's just related to the girl kid, and so I don't believe it is proper to deal with the larger implications of this problem Justice Gupta declared that she would not respond to the claims brought by the plaintiff. It was found in the Privacy Judgment that privacy encompasses a right to be left alone as well as the power to regulate many elements of your life. Having to make personal decisions that regulate one's lifestyle is part of privacy. Privacy is an essential component in preserving a rich and diverse culture. Privacy is not 26 Tripathi, Karan(2021).
Delhi HC Dismisses Plea For Making ‘Marital Rape’ A Ground For Divorce. LIVE LAW. Retrieved September 19,2021, 4:34 ET from https://www. livelaw. in/news-updates/recognition-of-maritalrape-as-an-offence-146200.
27 (2017) 10 SCC 800.
relinquished solely because the individual is in a public location. Privacy is a vital component of human dignity, thus we must safeguard it”. Finally, the court added that the right requires the state to provide a complete protection of the individual's private 4. 4. A Bench of Justices J. B. Pardiwala and Niral. R. Mehta in case of Jaideep Bhanushankar Verma vs Union of India(2021), noted in their order dated 14. 12. 2021 that "it is high time that a writ court undertakes the exercise of considering, whether the Exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband. There are many other larger issues raised in the present litigation which needs to be considered in detailed. " It encourages men and women to believe that raping their wives is fine.
According to the High Court, "making wife rape criminal or an offence will eliminate the damaging attitudes that promote marital rape". In spite of several Supreme Court rulings affirming women's rights to bodily integrity and privacy, legislative amnesty for marital rape remains in the statute book. In the case of State of Maharashtra v. Madhukar Narayan Mardikar(1990), the right to bodily integrity was recognised in the context of privacy. There is no right to violate someone else's person, including a "unchaste lady," according to the Supreme Court. In Suchita Srivastava v. Chandigarh Administration(2009), the Supreme Court affirmed a "woman's right to decline participation in sexual activity or alternatively the insistence on the use of contraceptive techniques". "Raping is not merely a criminal against a woman's person; it is a crime against society as a whole," the court said.
"A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female," the court said in State of Punjab v. Gurmit Singh(199628), describing the anguish a rape victim has through. This was proposed by the Justice J. S. Verma Committee of Amendments to Criminal Law in January 2013, which delivered its report. There is no defence to rape or sexual assault based on the existence of a marriage or other relationship between the perpetrator and the victim. The investigation into whether the complainant consented to the sexual activity is unaffected by the existence of a relationship between the accused and the complainant. 4. 5. "A rapist is a rapist regardless of his relationship with the victim," the European Commission of Human Rights found in C. R. v. UK. Marital rape is now punishable by law
28 AIR 1393 1996 SCC (2) 384.
in Canada, thanks to a 1983 law repeal. Marital rape was made a crime in South Africa in
1993. As a result of legislation passed in all Australian jurisdictions, common law
"marriage rape immunity" has been removed. Such protection for the huand was considered "offensive to human dignity" and "incompatible with the legal position of a spouse" by the judges. An American Supreme Court decision stated that "married couples are not an independent entity with minds and hearts of their own, but a partnership between two individuals each with a distinct intellectual and emotional makeup. " "A rape that actually occurred cannot legislatively be simply wished away," according to the Justice Verma Committee. It is high time that the legislature once again intervenes and go into the soul of the issue of marital rape. In case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), court held that “marital rape is a serious matter though, unfortunately, it is not attracting serious discussions at the end of the Government”.
Currently, the Delhi High Court currently in case of RIT Foundation v. Union of India(2021)29, concluded hearing a challenge to the constitutional validity of the ‘marital rape immunity’ provided for in the Indian Penal Code. The case has put the spotlight on crucial issues concerning consent, the extent of state control on female sexual autonomy, and correcting historical prejudices in law. The court delivered split judgment and said:“ There is no precedent or statutory support for the petitioners' claim that all non-consensual sex by any man with any woman is rape; the impugned Exception does not violate Article 14, but is based on an intelligible difference that has a rational connection to the object both of the impugned Exception and Section 375 itself; it does not violate Article 19(1)(a) and Article 21”. 4. 6.
“In such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, I am of the considered opinion that the challenge, by the petitioners, to the constitutional validity of Exception 2 to Section 375 of the Constitution of India, cannot sustain; That the impugned provisions [i. e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down; The offending husbands do not fall within the ambit of the expression ‘relative’contained in Section 376 (2)(f) of the IPC and, consequently, the presumption
29 “W.P.(C) 284/2015 & CM Nos.54525-26/2018”.
created under Section 114A of the Evidence Act will not apply to them. ” The court further held that “Section 376B is clearly founded on the fact that the demographics that otherwise apply to a surviving and subsisting marriage between the couple are missing when the couple is separated. Section 376B does not refer to non-consensual sexual intercourse between a man and a woman in such a situation as rape. ” It considers it as if it were a completely separate and independent offence, with a completely different punishment. The husband has no reasonable expectation of sexual intimacy with his wife if the couple's marital ties have been severed, even if there hasn't been a formal divorce. As a result, the specific indicators of a healthy, thriving, and long-lasting marriage are no longer relevant.
This, too, is a circumstance unique from that of sex between strangers and between a husband and wife who are living together, as well. Therefore, it is not comparable to sex between a couple who live together, but it is also not comparable to sex between two strangers. The legislature has carved out a sensible middle ground to address these issues, and the court see no reason to meddle with it. In every case, the court would have to determine whether or not the couple is "living apart. " A less severe penalty has been prescribed by the law in recognition that even when the couple isn't together, their marriage is still legally valid. Also, Section 198B merely outlines the procedure for dealing with Section 376B concerns and there is no reason to invalidate the provision. 7. 7.
As part of a momentous ruling, the Karnataka High Court (Hirikesh Sahoo Case 2022)30, rejected a petition from a husband seeking to dismiss rape accusations made against him by his wife under Section 376 of the Indian Penal Code. As a result of Exemption 2 to Indian Penal Code Section 375, the Court rejected the husband's claim that the prosecution could not be brought against him because of the exception to marital rape from rape. The Court of Appeals noted that the exemption could not be deemed absolute by the government. If a husband is found guilty of assaulting or raping his wife, "no exemption in law can be so absolute that it constitutes a licence for the conduct of crime against society," the court stated. An exemption to marital rape is "regressive," according to the Supreme Court, and it is inconsistent with the ideal of equality in Article 14 of the Indian Constitution.
As Justice M Nagaprasanna's single-judge panel put it: 30 (2022). Retrieved 15 May 2022, from https://www. berkeleyjournalofinternationallaw. com/post/marital-rapein-india-an-international-human-rights-law.
"The founding document of our nation, the Constitution, emphasises equality for all people. Discrimination is a part of the Code. According to the Code, every other guy who commits crimes against women faces the same penalties. Section 375 of the IPC, on the other hand, is an exemption. The concept of seeing a woman as a subservient to her husband, which is incompatible with equality, is, in my opinion, regressive rather than progressive. ” "Because of the inherent inequity in this provision of law, a spouse or father can be protected from being held accountable for alleged violations of Section 375 of the IPC. Consequently, it would be in conflict with Article 14 of the Constitution ". In addition, the Court stated: "A man, a woman, or anyone else is entitled to the same protections guaranteed by the Constitution.
Article 14 of the Constitution says that any provision of law that contemplates inequality is unconstitutional. Exception-2 to Section 375 of the IPC cannot make women and men unequal under the Constitution. It is up to legislators to reflect on the fact that there are such disparities in the legislation ". According to petitioners' counsel, if the man is the husband, performing the same acts as another man, he is exempted from prosecution if he is the husband. The bench rejected this argument saying that there is no such thing as a “husband” or “wife” in the context of rape; a man, an act, and a rape are all the same. Taking into consideration the origins of Section
375 and its exemption, the bench examined the “Code of Macaulay” in 1837, which became
the basis for Indian Penal Code of 1860, which regulates the penal provisions until today, with some revisions from time to time. It stated “The IPC has had an exception to Section
375 since the British enacted it in 1860. After that, Exception-2 was governed by the rules
of the British colonies in which they had a foothold. They happened a long time ago. In medieval law, a contract stipulated those men had exclusive authority over their wives, and this has been the underlying principle ever since.” It was further noted that “The Constitution of India governs India post-Republic. The Constitution regards marriage as a union of equals and treats women as equal to men. The Constitution does not portray a woman as subservient to a man in any way. It is guaranteed by Articles 14, 15, 19, and 21 of the Constitution that all people have the right to a dignified and free life, personal liberty, physical integrity, and the freedom of sexual orientation and reproduction. Equal protection and equal rights are guaranteed by the Constitution.” After the Nirbhaya case of 2013, the
Supreme Court made reference to the amendments made to Section 375 “Intercourse between a man and his own wife, even if the woman isn't under the age of 15, would no longer be considered a rape under the revised provision. ” 'Sexual acts' by a man are now included in the definition of 'sexual intercourse, following the amendment exception. The addition of the phrase "other sexual actions" makes all the difference. When it comes to sex, only intercourse and other sexual actions by a husband are exempted. It was a new addition and this means that the status of a woman as a woman and the status of a woman as a wife are both given. Man gets punished for his actions because he is a man; but man is free from punishment for his actions because he is a spouse. The Constitution's soul is shattered by this inequity, which is the right to equality.
" Among other things, the court cited Articles 14, 15, 16, 21, 23, 39, and 243D of the Indian Constitution, as well as laws in the Indian Penal Code relating to the protection of women. The Dowry Prohibition Act of 1961 by the National Commission for Women which stated “All of the aforementioned and cited articles of the Constitution, IPC regulations, and specific acts enacted together would clearly show that women's rights, protection, and equality with males are intertwined. As a result, women have full equality under the law and in the eyes of the facts. ” Justice Verma's committee had suggested eliminating the exemption for marital rape from the definition of "domestic violence. " However, Section 375 of the IPC was only changed to read "sexual assault" rather than "rape.
" The court also rejected claim that the husband is protected by the institution of marriage for any of his actions, as is conducted by a common man, again without countenance. "Any particular male privilege or licence to unleash a vicious beast is not conferred by marriage and should not be deemed to be conferred upon it. Manslaughter should be prosecuted under a man's law, regardless of whether the guy is his wife's spouse. " Furthermore, the court noted "Because of the horrifying accusations against the petitioner-husband in the complaint and other communications, I do not believe the learned Sessions Judge erred in taking cognizance, framing the charge under Section 376 of the IPC, and also rejecting the said charge's application to be dropped.
Removing the charge of rape would be an enormous injustice to the complainant-wife and would elevate the petitioner's libidinal wants if it were to be done in this particular case. "
5. LACUNAE IN THE INDIAN LEGISLATION –RESEARCHER’S ANALYSIS
1. Article 21 of the Indian Constitution has seen its reach significantly broadened by the
courts, and now includes the "right to live with human dignity" as part of its protections. According to this argument, the exception allowed under Section 375 of the Indian Penal Code is in violation of Article 21 of the Indian Constitution since it infringes a woman's right to a dignified life. Despite the Constitution's mandate that every citizen "renounce behaviours detrimental to the dignity of a woman," it appears that domestic abuse and marital rape do not fall under the definition of dignity.
2. India is a signatory to the "United Nations Convention on the Elimination of All
Forms of Discrimination Against Women" (CEDAW), which views this kind of discrimination against women as violating the principles of equality and respect for human dignity. Marital rape should be criminalised, according to the Commission on Human Rights' 50th session resolution, "The elimination of violence against women".31
3. There has also been a disappointment in the recent protections legislated in the form of
the "Domestic Violence Act, 2005". Section 498-A of the Indian Penal Code already provided civil remedies for cruelty, but the new law does not address the issue of marital rape and will continue to ignore it. Domestic violence is defined under Section 3 of the Domestic Violence Act, which includes any act that causes harm, injury, or anything that threatens the health, life or well-being of a domestic partner, whether mental, physical, or sexual. In a domestic partnership of marriage or a live-in, sexual abuse may be tolerated if it is neither life-threatening or severely damaging.
4. Section 122 of the Indian Evidence Act, 1872, prohibits the parties from disclosing
communications made during their marriage in court. The evidence is significant, but inadmissible, unless it is used in a case of assault or some other form of physical or mental abuse that falls under the definition of cruelty. It will be nearly impossible to prove beyond a reasonable doubt the offence of marital rape under the Indian Penal Code, 1860 and the Domestic Violence Act, 2005.
5. Section 498-A of the Indian Penal Code has so far safeguarded women from "perverse
sexual conduct by the husband" by providing a "umbrella" of protection. In the context of intimate spousal relations, is there a metric or standard of measurement or 31 Hasday, J. E. (2000). Contest and Consent: A Legal History of Marital Rape. California Law Review, 88(5), 1373–1505. https://doi.org/10.2307/3481263.
interpretation for the courts? Is it "perverse" to demand too much sex? Doesn't sexual intimacy necessitate consent?
6. The law prohibits a woman under the age of 18 from getting married, but it permits
non-consensual sexual relations with a husband who is just 15 years old. The Indian Penal Code, 1860, defines rape as a crime even if the victim is 16 years old or younger and not the husband of the perpetrator. It's not rape if she's married, over the age of 15, and refuses to provide consent. According to the Indian Penal Code, 1860, nonconsensual intercourse with an underage wife is rape if the woman is between the ages of 12 and 15. But the punishment is only a fine or a maximum of two years in prison or both; this is much less severe than the punishment for rape committed outside of marriage.
7. In rape situations, consent denotes an unequivocal voluntary agreement when the
woman conveys her willingness to participate in the specific sexual act through words, gestures, or any other kind of verbal or nonverbal communication. For the defence of rape, a woman's permission must be voluntary, after she has exercised her choice between resistance and acquiescence. This circumstance must be evaluated in light of the rest of the evidence in order to determine whether or not the aggressor or the aggressors consented to the alleged assault. An act of helpless surrender in the face of impending coercion when the volitional faculty is overburdened by fear cannot be declared consent under Code Section 375 definition of voluntary assent. If her consent is gained by putting her or any person she cares about at risk of death or serious injury, such consent would also be insufficient to defend her actions.
The burden of proof rests with the defence in rape proceedings since the prosecution is presumed to have acted without the victim's consent (S. 114A Indian Evidence Act).
8. It is unfortunate that the IPC, 1860 does not clearly define the phrase "consent." It
simply lists the things that aren't considered consent (S.90). This means that a person's permission is presumed only when the consent was provided freely, voluntarily, and without the victim's mind having been influenced by fear, force, or fraud. When someone is under the influence of drugs, intoxication (unable to comprehend the nature and consequences of the conduct to which she consents), anaesthesia, unsoundness of mind, coma or paralysis, she cannot provide consent. 'Consent,' as defined under
Section 375, requires a mature and informed awareness of the nature and implications of one's sexual activity. To be clear, agreement and participation must be freely given and willful; nevertheless, no adequate explanation is provided in Explanation 2 to Section 375, rendering it ambiguous and nonsensical.32
6. SUGGESTIONS—RESEARCHER’s COMMENT
1. In a marriage, consent should not be implied. There are other elements that could aid in
identifying and/or resolving cases of sexual assault, and some of those factors are testimonial evidence provided by a wife and corroborated history of sexual abuse. However, it may turn out to be an essential piece of evidence in proving that the husband is a frequent rapist.
2. It's also possible that testimony from friends and family members may be invaluable.
One further factor that may aid in determining guilt is the word of a doctor if the woman has consulted one.
3. Also, the argument is made that criminalising marital rape will lead to an increase in
cases, thus placing an additional burden on the judiciary. This problem can be averted by increasing the number of judges by as there are an abundance of pending cases in the Indian courts. Additionally, penalties for cases shown to be false should be severe and binding.
4. Clear and explicit: In law, it must state and highlight that a criminal and victim cannot
use their connection as a defence, even if they are married. Also, the law would face a lot of opposition due to cultural objections. Thus, there is an exception to Sec.375, and Sec.375 itself should be considered illegal.
5. Under Sec.376, rape sentences range from 7 years to life imprisonment. The
punishment policy should be the same for everyone. Sec.376(b) imposes an imprisonment of three to seven years on a husband who has raped his wife while the couple is separated. From examining the laws, we can plainly assume that the reason
32 CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES
14 & 21. (2022). Retrieved 15 March 2022, from https://thedailyguardian.com/constitutionality-of-marital-rapein-india-an-analysis-in-the-light-of-articles-14-21/.
why the husband was given a lighter sentence was due of his wife's protection. The foregoing being incongruent with Article 14, which grants the Right to Equality, is extra vires. To meet this goal, Sec. 376 (b) should be abolished. Consequently, it is argued that Section 375 of the Indian Penal Code, 1860 provides no rational classification and consequently breaches Article 14 of the Constitution, which guarantees the right to due process.
6. Additionally, gender-neutral laws should be implemented and inequality should be
combated.
7. Grounds for divorce should automatically include marital rape under all personal laws.
8. There should be no difference between Rape as defined under Section 375 and Marital
Rapes.
9. Sex education should be promoted.
10. Unlawful sexual conduct should be classified under section 376E, a new offence.
11. Section 509 of the Indian Penal Code (IPC) was also proposed to be changed to provide
a greater sentence for sexually motivated crimes. Also, situation should be cleared as to attempt to marital rape under Section 511 IPC.
12. Marriage and divorce must be under the secular law; that is the need of the hour. Time
has come to revamp the marriage law in our country. Marital rape should also be the ground of divorce always along with a long giving compensation to the victim and family.
13. Steps to provide free medical assistance such as psychological and psychiatric
assistance, relatives and friends, etc., would help the victim gradually to overcome the trauma.
14. There is a need for dynamic interest in the legalisation of marital rape in a country
where women are raped on a regular basis and the likelihood of an Indian married woman encountering sexual violence is many times greater. However, notwithstanding the Justice Verma Committee and 42nd Law Commission Report's support for
criminalising marital rape, the main relief currently available are the common remedies provided under the 2005 Domestic Violence Act. When there is a torrent of domestic and sexual assault evidence against women due to the pandemic-induced lockdown, the legal administration must recognise that marital rape is a criminal under the Indian Penal Code. A complete overhaul of our criminal justice system would be triggered by the elimination of Exception 2 of Section 375 and the adoption of Section 376's proposed punishment for marital rape. Assaults are assaults, no matter who perpetrated them or how old the victim was at the time. A woman who is assaulted by a stranger or a stranger's significant other has a vivid recall of the ordeal; yet, a woman who is assaulted by her own significant other is still alive and needs to be comforted by her assailant.
In particular, the legal executive, which has promised to safeguarding each individual's primary rights, must not be ignored when it comes to Indian women and their common liberties.
15. Women have been struggling for equality since the beginning. After all these years of
modernisation, Indian society has yet to fully recognise the dignity of married women when it comes to their rights. Is India's law mute when it comes to the protection of women, or is it silent when the issue is raised? It doesn't matter whether rape is committed by her spouse or an unidentified perpetrator; in both circumstances, the women suffer the same misery. If our Government cannot hear our agony, why are we waiting for another Nirbhaya, where the attacker is her husband and the victim is a married woman? Indian women may be doomed to a life of rape, but if this is their fate, then God only knows when and who will be the unlucky victim who sacrifices her life to bring Marital Rape to the attention of the Indian penal code under Section 375 of IPC. For the sake of women and society, I propose that section 375 of the Indian Penal Code be amended to add Marital Rape as a crime.
In order for a baby to be born healthily, the mother must be in good health as well. What happens to our country in the future is up to us.
16. Implied permission for sexual intercourse inside the confines of marriage is not
irrevocable in today's fluid times. By almost all counts, marital rape is illegal in all but
36 countries, including India. Even though the Indian government opposes the removal
of exemptions in the Indian Penal Code for marital rape, the recent landmark decision of the Honorable Supreme Court of India in the case of Independent Thought affirms
that, as a result of the Delhi High Court's previous ruling in, the court will likely rule in favor of married women in order to protect their safety, dignity, and equality. It is imperative that civic efforts be organized to draw attention to marital rape and to demand legislation eliminating the marital rape exception found in the Indian Penal Code. Actually, it is true that the legal situation of marital rape in India should be raised from the current de facto (practiced but not legally enforceable) status to the de jure (established by the force of law) level. As a result of this, it may be concluded that the topic of marital rape has long been shelved and marginalized. Some do not doubt that marital rape should be criminalized, but they disagree on how to treat its sentencing.
However, placing the same offence on different platforms can have the opposite effect and can even be considered discrimination. Now the question is, is the criminalization of it enough or not? We first need to recognize that the husband does not have the right to act in a dreadful or harsh manner, and moreover, it is not his privilege. Therefore, it is only reasonable to treat married rape the same as non-marital rape. In some cases, proof of a defendant's guilt makes domestic violence, cruelty, and a reduced penalty an injustice. An assessment of less severe penalties for misappropriation is likewise unwarranted.
17. As the nation of the pious, the belief in and respect for women are no longer at the same
level as they once were. Whether or not she consents or accepts the favour, she is forced to submit to the sexual intercourse with the force of violence, resulting in her dignity being injured by her sacramental spouse, whom she is married to. This is the question that must be taken into consideration. It is important for the parties to the wedding to respect and respect each other if it is a sacrament. Marital rape must be recognised and punished if it does not respect the spouse and her circumstances. The penalty should be taken into consideration and the conviction should be made on the same grounds as that of a rapist.
18. For conservatives, however, the conclusive action of not hindering their ideal society,
values, and morals is to preserve marriage's sanctity; legislation can be brought in such a way that, when rape occurs, the marriage is immediately terminated and the husband charged with the same grounds as a rapist. As a result, the sanctity of marriage and religious belief can be preserved, while fairness and justice can be ensured, and those found guilty of abusing the "sacramental institution" will face heavier penalties.
However, what happens to the woman who was the victim of an unpardonable conduct at the command of a "holy institution" after the conviction? It is imperative that women be given the social freedom and economic support they need to help and bring about a revolution in the minds of women, so that they can walk out and establish themselves successfully. Social approval is a major factor in women's submissiveness, as well as their lack of economic strength to sustain themselves on their own. There are further steps that must be followed before a woman who has been raped by her husband can receive justice, and passing a legislation alone is not enough.
CONCLUSION
Sexual intercourse between a man and his wife, who is over the age of 15, does not constitute rape under Section 375 of the Indian Penal Code, 1861 and according to judgment of Supreme Court girls between the age of 15-18 years cannot give consent as they are minors. The 'Doctrine of Coverture' of the Victorian era, which gave women a non-legal status, is the source of this exception. When coupled with strict patriarchal culture, in which family is the most important social unit, it has ensured that marital rape has always been accepted. The Legislature and Judiciary approach claiming that society is not ready for the criminalization of marital rape is even more worrisome. Other reasons for not criminalizing rape in marriage include the possibility of it being abused or, as former CJI J. Deepak Mishra put it, “it will lead to anarchy in Indian families”.
Articles 14 and 21 of the constitution are argued to have been violated by the non-criminalization because it creates an inconsistency with the law's stated purpose, which is to prevent sexual assault on women. They are denied their basic right to health and dignity as a result. To address the unique dynamics of Indian marriage, this paper will argue that the crime of marital rape must be criminalised in India and that specific provisions regarding consent to marital rape should be drafted as to how there should be same standard of mens rea even in case of rape when it comes to consent or forceful sex and protection should be given to a women above 18 years and not only minors as ruled by Supreme Court.
The retention of the marital rape exception (MRE) in the Bhartiya Nyaya Sanhita (BNS) has sparked renewed debate on its constitutionality, especially given the law’s intended purpose to replace colonialera provisions. Clause 63 of the BNS maintains that non-consensual sexual acts by a husband with his wife, if she is above eighteen, do not constitute rape—an exception widely criticized for undermining individual rights and bodily autonomy. Judicial opinions have remained divided, yet the constitutional inconsistency of the MRE with fundamental rights like equality,
liberty, and dignity is clear. By exempting marital rape, the law creates an unjust distinction between married and unmarried women, depriving the former of protection against nonconsensual acts solely based on marital status. Removing the MRE would align Indian criminal law with constitutional values, recognizing the autonomy of all individuals regardless of their marital status.
REFERENCES
Kilpatrick, D. G., & Resnick, H. S. (1993). Posttraumatic Stress Disorder associated with exposure to criminal victimization in clinical and community populations. Retrieved September 19, 2021, 4:34
ET,
from https://link.springer.com/article/10.1023/A:1024437215004. Finkelhor, D., & Yllo, K. (1985). License to rape: Sexual abuse of wives. New York: Holt, Rinehart, & Winston.
Retrieved September 18, 2021, 2:44
ET,
from https://journals.sagepub.com/doi/10.1177/088626001016010002. The High Court of Delhi is hearing a clutch of petitions filed by All India Democratic Women’s Association, RTI Foundation and some other individuals who want deletion of exception 2 to s.375, IPC. When no is not an option: Marital rape denies right over her body. Hindustan Times. (2015, May 24). Retrieved March 15, 2022, from http://www.hindustantimes.com/india/when-no-isnot-an-option-marital-rape-denies-right-over-her-body/story- MJ3OIHpn9mtVfC3AXbbWOP.html. Anuja. S. Rights of Women against Domestic Violence-The Law and Emerging Challenges. (2012). Retrieved September 18, 2021, 19:05
ET,
from https://shodhganga.inflibnet.ac.in/bitstream/10603/21123/10/10_chapter%203.pdf. India Law Journal. (2020). India Law Journal. https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html Criminalizing marital rape will destabilize the institution of Marriage: Government tells Delhi
HC,
Outlook India, (August 29, 2017) https://www.outlookindia.com/website/story/criminalising-marital-rape-will-destabiliseinstitution-ofmarriage-government-t/300948. Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019), https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/. Marital rape brought under law will put family system under stress’, Hindustan Times,
(February 03, 2017, 10.52 pm IST). Anuja. S. Rights of Women against Domestic Violence-The Law and Emerging Challenges. (2012). Retrieved September 18, 2021, 19:05
ET,
from https://shodhganga.inflibnet.ac.in/bitstream/10603/21123/10/10_chapter%203.pdf. Article 1 of CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status”. Article 2 (a) of the DEVAW categorically encompasses marital rape as violence against women. Tripathi, Karan(2021). Delhi HC Dismisses Plea For Making ‘Marital Rape’ A Ground For Divorce.
LIVE
LAW.
Retrieved September 19,2021, 4:34
ET
from https://www.livelaw.in/news-updates/recognition-of-marital-rape-as-an-offence-146200. Justice Verma Committee Report on Anti-Rape Law. (2013). Retrieved September 22, 2021, from www.manupatra.com. Criminalizing marital rape will destabilize the institution of Marriage: Government tells Delhi
HC,
Outlook India, (August 29, 2017) https://www.outlookindia.com/website/story/criminalising-marital-rape-will-destabiliseinstitution-ofmarriage-government-t/300948. Marital rape: Demystifying “Consent” within Marriage. (2022, February 12). Times of India Blog. https://timesofindia.indiatimes.com/blogs/legally-speaking/marital-rape-demystifyingconsent-within-marriage/. Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019), https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/. Marital rape brought under law will put family system under stress’, Hindustan Times, (February 03, 2017, 10.52 pm IST). Aahna Rajan, India’s Marital Rape Problem, International Policy Digest, (February 14, 2019), https://intpolicydigest.org/2019/02/14/india-s-marital-rape-problem/.
Time to review IPC section that says marital rape is not crime: Gujarat high court. (2021, December 16). Hindustan Times. https://www.hindustantimes.com/india-news/time-toreview-ipc-section-that-says-marital-rape-is-not-crime-gujarat-high-court- 101639593822780.html. AIR 2004 SC 3566, 2004 (2) ALD Cri 504. Tripathi, Karan(2021). Delhi HC Dismisses Plea For Making ‘Marital Rape’ A Ground For Divorce.
LIVE
LAW.
Retrieved September 19,2021, 4:34
ET
from https://www.livelaw.in/news-updates/recognition-of-marital-rape-as-an-offence-146200. Hasday, J. E. (2000). Contest and Consent: A Legal History of Marital Rape. California Law Review, 88(5), 1373–1505. https://doi.org/10.2307/3481263. Akshaya, G.V and Akshaya M. (2018), A Study on Marital Rape in the Indian Legal Scenario G. International Journal of Pure and Applied Mathematics. 119(17).
Sir Dinshaw Fardunji Mulla, Hindu Law, Lexis Nexis (23rde.d., 2018). Vandana. (2017). Marital rape - exemption under IPC: Quest for recognition and liability by Dr. Vandana. ILI, law review. Anupriya, Dhonchak(2019). Indian Rape Law Consent Standard: Towards an Affirmative Standard, J. GENDER L. & Just. Hanson, Frieze. (1983). Investigating the Causes and Consequences of Marital Rape. The University of Chicago Press. 3 (8). Whatley, Mark. (1993). For better or worse: The case of marital rape, Violence and Victims. Retrieved September 22, 2021, 2:34 IST from https://pubmed.ncbi.nlm.nih.gov/8292562/. Latif, Ajani. (2017). Legal concept of marital rape: the perspectives within west-African customary laws. Southeast Asia Journal of Contemporary Business, Economics and Law. Ranchhoddas, Thakore. (2014). The Indian Evidence Act, 1872. Ratanlal & Dhirajlal.
Nagesh Haribhau Sawant. (2021). A Bibliometric Analysis of Impunity for Marital Rape in Contmporary Context.
Retrieved from https://digitalcommons. unl. edu/cgi/viewcontent. cgi? article=10949&context=libphilprac. B. , & R. (2003). Marital Rape: History, Research, And Practice, Trauma Violence Abuse. Das, P. K. (2013). Handbook on New-Anti Rape Law. Review of Handbook on New-Anti Rape Law. Universal Law Publishing Company. Ahmad Aqil (2006). Mohammedan Law. Central Law Agency. Bergen, R. K. (2016). An Overview of Marital Rape Research in the United States. Marital Rape, 19-28. The Hindu, OCTOBER 22, 2014, https://www. thehindu. com/news/national/marital-and-otherrapes-grossly-underreported/article6524794. ece. Trivedi, Shweta (2021). Marital Rape: Challenges and Concerns, International Journal of Innovative Social Science & Humanities Research, Retrieved from http://www. csirs. org. in/downloads/ijisshr/vol_2_issue_3/marital-rape-challenges-andconcerns. pdf. Waterman, C. K. , Dawson, L. J.
, Bologna, M. J. (1989). Sexual coercion in gay male and lesbian relationships: Predictors and Implications for support services. The Journal of Sex Research, 26(1), 118-124.